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Q. Witness von Brauchitsch testified the other day that in
May, 1944, the Fuehrer decreed the strictest measures
against the so-called terror flyers. Did you, in compliance
with this Fuehrer decree, issue instructions to shoot enemy
terror flyers or to have them handed over to the S.D.?
A. The concept "terror flyers" was very confused. A part of
the population, and also of the Press, called everything
which attacked cities "terror flyers," more or less.
Tremendous excitement had arisen among the German population
because of the very heavy and continued attacks on German
cities, in the course of which the population saw in part
that the really important industrial targets were less
frequently hit than houses and non-military targets. Some
German cities had thus already been hit most severely in
their residential districts, even though the industry in
these same cities remained on the whole untouched.
Then with the further flights of enemy forces to Germany
there came so-called low-flying aircraft which attacked both
military and non-military targets. Reports came repeatedly
to the Fuehrer, and I too heard of these reports, that the
civilian population was being attacked with machine guns and
cannons, that single vehicles which could be recognised as
civilian vehicles, and also ambulances which were marked
with a red cross, had been attacked. One report came in - I
remember it distinctly because the Fuehrer became especially
excited about it - said that a group of children had been
shot at. Men and women who stood in line in front of stores
had also been shot at. And these activities were now called
those of terror flyers.
The Fuehrer was extremely excited. The populace, in its
excitement, resorted, at first, to lynching, and we tried at
first to take measures against this. I heard then that
instructions had been given through the police and Bormann
not to take measures against this. These reports multiplied,
and the Fuehrer then decreed that these terror flyers should
be shot - or rather he made such a statement on the spot.
The belief that these flyers had been forbidden by their
superiors to make such attacks and that really they were to
attack with their weapons only targets which could be
recognised as military, I had confirmed beforehand through
an interrogation of the flyers.
[Page 146]
Now, as is often the case in matters of this kind, all
officers which had something to do with this were called in
and we were aware, as Brauchitsch has already declared - not
only those of us in the Air Force, but also those in the
O.K.W. and other military offices - that it would be very
hard to formulate and to support an order in regard to this
matter. First of all the concept "terror flyer" would have
to be defined once and for all. In this connection four
points were set down, and these points have already been
read here.
Debate on this matter went back and forth. In general I
expressed the opinion that these flyers, since they were
prohibited by their own superiors to do these things, could
be legally prosecuted by a military court every time. At any
rate we arrived at no definite order after long bickering;
and no office of the Air Force was ever instructed to
undertake any steps in this direction.
The document in which it is said, on 6th June, 1944, that a
conference between Himmler, Ribbentrop and me took place in
Klessheim and which is signed by Warlimont, states that
Warlimont said that Kaltenbrunner had told him he had
learned that such a conference had taken place. It does not
say it actually took place. Now this day, 6th June, 1944, is
a very significant day, as Brauchitsch has already
explained, for it is the day of the invasion in France. I no
longer know exactly who came to Klessheim. Klessheim is a
castle near Berchtesgaden and was used when allied or
foreign missions came to visit.
For a long time, already, it had been customary that when
such allied visits took place I, as Commander-in-Chief of
the Air Force, was not present, for each of these visitors
naturally wanted above all, on the occasion of these
conversations, the help of the German Air Force, and always
asked for fighting material from the German Air Force; that
is, machines, regardless of whether it was Bulgaria,
Roumania, Hungary, Finland, or Italy, or someone else. I
made a point of not being there in such cases, so that the
Fuehrer would have an opportunity to be evasive and to say,
"I must first consult with the Commander-in-Chief of the Air
Force."
Therefore, I had already left Berchtesgaden on the 3rd or
the 4th, as far as I remember, and was on my estate near
Nuremberg. The General Staff officer who accompanied me, the
physician and various others will be able to testify to this
if necessary. In the morning hours I learned here of the
invasion. Brauchitsch is wrong on one point, that this had
already been reported as an invasion. On the contrary, in
response to my further inquiry it was said that one could
not yet tell whether it was a diversion manoeuvre or the
actual invasion. Thereupon, I returned in the late evening
or in the afternoon - I remember exactly, I left after lunch
and it takes about four and a half hours from hereto
Berchtesgaden. I therefore did not take part in the
conference on this matter with Ribbentrop or Himmler in
Klessheim or anywhere else, and I want to emphasise this
especially. This conference was held by my
adjutant, von Brauchitsch, that is, my General Staff
officer, and he was the one who told the O.K.W., without
consulting me once more, that it was my opinion that it was
right to have court proceedings in such cases. The decisive
thing, however, is that no such order, as a Fuehrer order or
as an order of mine, was issued to any office of the Air
Force, to the transit camp or the interrogation camp in
Oberursel or to any part of the troops.
A document which has been read here concerns a report from
Air District No. 11, which mentions the shooting of American
flyers. I believe they were Americans, and this is mentioned
in this connection because it says Air District 11. I looked
through the document - there are two very thorough
appendices. It is stated very definitely and clearly here
that Air District No. 11 reported that a crew which had
bailed out and been rescued from the lake by some troops
which did not belong to the Air Force were shot by the
police while on the way to the airfield - the exact name of
the police precinct is given - that they therefore did not
arrive there, but had been shot beforehand by the
[Page 147]
police. Then Air District 11 duly reports these events. In
the attached report each of the men is mentioned by name and
also what happened to him. Some were taken to hospitals,
others were, as said, shot before. And all these reports and
each individual report sheet can be explained by the fact
that the offices of the Air Districts, as the competent
offices at home, were instructed automatically to make
reports on a printed form, whether it was a crash or a
forced landing of our own or of enemy aircraft, at what
time, whether the crew bailed out, whether the crew were
killed or half of them killed, whether they were brought to
the camp or to the hospital. And in this case it is
correctly reported, "Shot by the police while trying to
escape, buried at such-and-such a place."
Records of this type of our own and of hostile craft which
had been shot down with their - crews came in currently by
the hundreds in my dispatches in this great war of the air,
and were channelled from the Air District to the competent
offices. The Air Force itself had nothing to do with this;
it is very clear from the German original document that this
was merely a report.
In this connection there were heated discussions. All the
gentlemen who had to take part in the Fuehrer's daily
briefing sessions will recall exactly that the Fuehrer
repeatedly told me in a very unfriendly manner that he
finally wished to know the names and the punishment of those
officers who again and again had protected flyers from the
population. I did not have these people searched for or
arrested, nor did I have them punished. I always pointed out
to the Fuehrer that it had already happened that even our
own flyers who had bailed out had been most severely
mistreated by our own people, who at first were completely
confused, and that I therefore repeatedly emphasised on
behalf of the Air Force that these things had to be stopped.
There was one last sharp controversy, again In the presence
of many gentlemen, at the briefing session in which, when
again I referred to these things, the Fuehrer cut me short
with the words, "I well know that both Air Forces have come
to a mutual agreement of cowardice." Whereupon, I told him,
"We have not come to an agreement of cowardice, but somehow
we aviators have always remained comrades, no matter how
much we fight each other." All the gentlemen present will
remember this.
Q. What was your attitude, as highest judicial authority of
the Air Force, in regard to punishable acts committed by the
soldiers under you in occupied territory ?
A. As highest judicial authority I had all the bad cases
referred to me and spent many hours examining them. That is
why I attach particular importance to the fact that the
highest legal counsel of the Air Force be heard here on this
point. In many cases, I rescinded sentences because they
were too mild, especially if it was a matter of rape. In
these cases I always confirmed the death sentence which had
been handed down by the court, unless an appeal for mercy
was made by the offended party in exceptional cases. I thus
confirmed the death sentence of a number of members of the
Air Force who took part in the murder of inhabitants of the
occupied territories in the East as well as in the West.
I do not wish to take up the time of the Tribunal by citing
a number of detailed cases which would prove this. Beyond
this I was the judicial authority for those inhabitants of
occupied territories who were brought before an Air Force
Court, as, for instance, when in France, Holland or Russia
or another country, the native civilian population had
helped enemy flyers to escape or had been guilty of acts of
sabotage on aeroplanes, or had engaged in espionage in
connection with the Air Force; that is, all punishable acts
which had taken place in connection with the Air Force. The
war situation demanded, of course, that in general we
enforce strict measures here.
But I should like to emphasise in this connection that, of
course, the prescribed death sentences were also never
applied by the courts to women. In
[Page 148]
all these cases involving women I have not, during the
entire war years, not once confirmed with my signature a
single death sentence on a woman, not even in the case of
fatal attacks or participation in such on members of my Air
Force, not even in the worst cases have I not given
reprieve. . .
Q. In your military and economic measure in the occupied
territories did you take into consideration whether these
measures were in accord with The Hague Convention on Land
Warfare?
A. I scanned through the Regulations on Land Warfare of The
Hague Convention for the first time just before the outbreak
of the Polish conflict. As I read them at that time I
regretted that I had not studied them much more thoroughly
at an earlier time. In this case I would have told the
Fuehrer that, in view of these Regulations on Land Warfare
of The Hague Convention, as they had been set down paragraph
for paragraph, under no circumstances could a modern war be
waged, but that one would perforce come into conflict with
the conditions set down then in 1906, because of the
technological expansion of modern war. Either one would have
to cancel these, or else one would have to introduce modern
new viewpoints corresponding to technical developments. My
reasoning is as follows:
The Regulations for Land Warfare of The Hague Convention, as
they now existed, I had, in my opinion, studied quite
correctly and logically as Regulations for Land Warfare,
1907. But from 1939 to 1945 there was no longer merely land
warfare but also air warfare, which has not been taken into
consideration here and which, in part, created an entirely
new situation, and which transformed the Regulations on Land
Warfare of The Hague Convention in many respects. But that
is not so much the decisive point; rather, modern and total
war develops, as I see it, along three lines: the war of
weapons on land, on the sea, and in the air, the economic
war which has become an integral part of every modern war,
and, third, the propaganda war, which is also an essential
part of this warfare.
If one recognises these principles on the basis of logic,
certain deviations will then result which, according to the
letter, can be a violation of logic, but not according to
the spirit. If the Regulations on Land Warfare of The Hague
Convention provide that weapons of the opponent are to be
regarded as a matter of course as booty, then I must say
that to-day in a modern war the weapons of the opponent
under certain circumstances have value only as scrap, that
economic goods however, raw materials, steel, high grade
aluminium, copper, lead and tin, seem and are much more
essential as war booty than are obsolete weapons which I
might take from the opponent. But beyond that, it is not
only a matter of raw materials, no matter whose property
they are. The Regulations on Land Warfare of The Hague
Convention provided at one place - I do not remember it
right now - that those things which are necessary can be
confiscated, but only when compensated for. That is also not
the decisive factor, as one can readily believe. Decisive
is, however, the fact that, in this modern war and in this
economic war, which is the basis for any further conduct of
war, the supplies must be regarded as absolutely necessary
for the war and must be made available for use in war, first
of all in the food sector, as the basis of every conduct of
war, and beyond that raw materials in the industrial area.
But, likewise, the places of production and the machines are
part of economic warfare. If they have, up till now, served
the opponent whether in the immediately or in the indirectly
contributing, or in the supporting industry - as to armament
and conduct of war they must now also serve whoever has come
into the possession of these means of production through
military decision, if only temporarily during the armistice
or in the occupied territories. In this connection, the
labour question naturally also plays a far greater role in
the economic war than it did in those former wars which
served as examples in the Regulations on Land Warfare of The
Hague Convention. In
[Page 149]
1907 the most recent wars, the Russian-Japanese war and
perhaps the English-Boer war, which were, however, conducted
under entirely different circumstances - wars which for
practical purposes lie decades behind us - could serve as an
example of warfare. A war, at that time, between one army
and another, in which the population was more or less not
involved, cannot be compared with to-day's total war, in
which everyone, even the child, is drawn into the experience
of war through the introduction of air war.
According to my opinion, manpower and, thereby, the workers
and their use at the moment are also an integral part of the
economic war. Thereby, it is not meant that such a worker
should be so exploited that he suffers physical injury but
only that his manpower should be fully used.
One of the witnesses mentioned recently what it means to be
in an occupied territory where fighting is still going on
and where one remains for years while one, two, three, four
and five new military age groups are growing up and staying
at home without any work.
THE PRESIDENT: Dr. Stahmer, is there any chance that the
defendant will finish by to-night?
DR. STAHMER: This is the last question.
THE PRESIDENT: Please continue.
THE WITNESS:
A. The question of the deportation of workers has,
therefore, also to be regarded from this point of view,
namely, that we were obliged to introduce it as a measure
for our security. We also had to dispose of manpower and, at
the same time, especially those who had no work in their own
country and represented a danger on the side of the
underground resistance arising against us, would have to be
removed.
If these age groups were drafted into Germany for work, this
happened
because of basic considerations of security, in order that
they should not be left idle in their own country and thus
be made available for the work and the struggle against us,
but on the other hand should be used to our advantage in the
economic war.
Thirdly, I want to mention these things just very briefly
and, in conclusion, the war of propaganda. At one point in
the Indictment is also mentioned that we requisitioned
radios, which is, to be sure, a matter of course. For what
great importance the war of propaganda had, enemy propaganda
which extended by way of radio far into the hinterland, no
one has experienced more strongly than Germany. All the
great dangers of the underground movements, the Partisan
war, the Resistance movements and the sabotage and
everything connected with it, and finally also this war,
this embitterment and this atmosphere, have been called
forth to the extreme by this mutual fight over the radio.
Also, whatever happened in the way of atrocities and similar
acts, which should not be tolerated, are in the last
analysis, if one thinks about it calmly, to be attributed
primarily to the war of propaganda.
Therefore the Regulations on Land Warfare of The Hague
Convention are in my opinion not an instrument which can be
used as a basis for a modern war, because they do not take
into consideration the essential principles of this war, the
war of the air, the economic war and the propaganda war.
And at this point I should like to say the same words which
one of our greatest, most important and toughest opponents,
the British Prime Minister Winston Churchill, used: "In the
struggle for life and death there is in the end no
legality."
THE PRESIDENT: The Court will adjourn.
(The Tribunal adjourned until 16th March, 1946, at 10.00 hours.)

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